By Joan Ogeto
Sexual violence has been documented nearly as long as people have been recording history. It takes many forms including rape, defilement or incest just to name a few.
It has long been a cruel aspect of the human trait and culture, appearing in everything from the literature of ancient societies and even the Bible which contains tales of rape. Throughout history, rape has had an impact, not only on women but also on men and children. It has affected the development of cultures all over the world, in some cultures, women have been abducted as brides or even claimed as prizes of war.
Formerly, the Code of Hammurabi, an ancient Babylonian legal text discovered in the city of Susa, or what is known today as Iran, concerned itself with law of retribution as a form of justice commonly associated with the saying “an eye for an eye”. Rape of a virgin was punishable by death and the victim held blameless. Married women who were raped however were considered to be guilty of adultery and therefore
equally responsible. They were executed alongside their rapists by drowning.
Ancient Assyrians in the Code of Assura took the ‘eye for an eye’ interpretation in that the father of the raped virgin could rape the rapist’s wife as punishment. The husband of the woman violated was also
permitted to kill his wife if she was raped.
Further down history, Celtic law or the pre-British considered rape as a crime against a woman. It defined two kinds; forcible rape meaning against the woman’s will and rape as a result of lack of consent either due to mental illness or intoxication.
The 6th Century Roman law was the first to declare the crime of rape against a married woman by her husband. It was referred to as the ‘crime of raptus’ which also applied to widows and nuns. The phrase ‘raptus’ however did not previously refer to any sexual crime. Over time, legalists started to distinguish
between different categories namely abduction, elopement and forced sex, imposing various punishments for each.
Severity of offences against women was determined by their status; upper or lower class and virgin or not.
In the 10th century, the Anglo-Saxon punished the crime of rape by death and castration. Castration applied to the rapist’s male animals and his possessions were given to the victim.
Throughout history, rape has had an impact, not only on women but also on men and children. It has affected the development of cultures all over the world, in some cultures, women have been abducted as brides or even claimed as prizes of war.
In the United States, before the civil war when slavery was rampant, rape of enslaved women was not
considered assault.
The Bible’s book of Deuteronomy 22:28-29 speaks of marriage of virgin by the rapist, stating that because he violated her, he cannot divorce her as long as he lives. The same happened in 2012 Morocco to the sixteen year old Amina Filali, who chose death by rat poison rather than marry her rapist like the Moroccan judicial system decided.
The physical reality of rape has not changed. The classic definition has over time involved the penetration
of a vagina or other orifice by a penis or other objects without consent of the woman being penetrated.
What changed is the definitions, perceptions and laws concerning it. Modern laws on sexual assault in many countries now recognize that both women and men can be raped, that wives can be raped by
their husbands and that often times the victims know their attackers. What is observed is that rape
remains the most underreported crime for various reasons, with statistics indicating that it is a serious
worldwide problem.
There are varying definitions of rape, including legal, psychological, societal, and subjective ones. It is a serious offense that is treated as a felony in most countries. In Kenya sexual violence is prevalent as a result of gender-based violence, which in some cases has manifested as a result of gender inequality. This
is not the only reason why it takes place, but one could deduce from the exercise of power by men over
women and girls that it is a major contributing factor of this crisis. The Sexual Offences Act was passed in 2006 with the intention to tackle issues of sexual violence.
Under the Sexual Offences Act, one is guilty of the offence of rape “if he or she intentionally and unlawfully commits an act which causes penetration with his or her genitals” and if “the other person does not consent”. This act further clarifies that if consent cannot be obtained by means of force, threat or intimidation. A guilty party of the above offence is liable to imprisonment for a term not less than ten years which may also be enhanced to life imprisonment. Any attempt of the above definition by persons will also be found guilty of attempted rape, and they will be liable for imprisonment of a term not less than five years which may also be enhanced to life imprisonment.
In many reported cases, women have typically been threatened with bodily harm, and surprisingly some taken within their homes. This is use of force, and while force may be commonly associated with physical
pressure, it is also important to acknowledge that it may take other forms. A victim may be coerced
into having non-consensual sex by the perpetrators using emotional coercion, psychological pressure, or
manipulation. Some perpetrators will use intimidation or other forms of threat to coerce a victim
into complying, going as far as threatening to harm the victim’s family. Because of this, determining
one’s culpability in a sexual offense starts with their sexual consent. It is a necessary component in a number of offenses included by the Sexual Offenses Act.
In most nations, the age at which a person can consent to sexual activity is set between 14 and 18 years old, however in some it can be as low as 12 years old. Under Article 260 of the Kenyan Constitution, a child is a
person who has not reached the age of 18. Similarly, the Sexual Offenses Act establishes 18 as the minimum age for consent. Currently, the age of consent is 16 years in 76 countries. The Philippines and Angola both have their age of consent at 12 years, while Nigeria has the world’s lowest age of consent at
11. And that is where statutory rape comes in.
Statutory rape refers to any kind of sexual assault committed against a child, meaning one who is not of the legal age of consent. It may also be interpreted to include any person who is presumed to be incapable of understanding the physical and other repercussions of the conduct, for instance someone that is mentally ill or intoxicated. It could also be interpreted to mean any kind of sexual assault committed against a
person above the age of consent, by an individual in a position of authority for example by teachers, doctors or employers. Historically, after apartheid was abolished, statutory rape became more common in South Africa, where it was believed that almost two-fifths of rape victims there were under the age
of 18. Numerous rapes were committed throughout the nation under the bizarre assumption that having sex with virgins, including children, would cure the rapist of HIV/AIDS. Furthermore, Interpol stated that South Africa had the highest rate of rapes in the early 21st century.
So what pushes people to commit this heinous crime against their fellow humans? Rapists’ psychological drives are more complex than previously believed. They include the impulse to punish, exact revenge, inflict harm, demonstrate one’s sexual prowess, or assert dominance over others through terror. What can deter fellow humans from committing this offence is imposing serious punishment on the perpetrators. In France, the laws are pretty serious with the government handing out fifteen years sentences for rape, which could be extended to thirty years or life, depending on the brutality or damage on the victim.
In China, the punishment for rape is the death penalty, which some may applaud. Execution without a fair trial, however, is just barbaric. The fact that several convicted rapists who were executed were later
found innocent serves as evidence of their authoritarian rule. In some circumstances, castration may also be used.
Saudi Arabia punishes rape by publicly beheading the perpetrator after giving them a tranquilizer. The fact that they impose the same penalty for drug trafficking also shows that there is a serious flaw in their moral and legal framework.
The dictatorship in North Korea sees rapists sentenced to death by firing squad. Similarly in Iran, the death sentence is imposed however, death is through hanging, or sometimes stoning which is equally gruesome. Unfortunately, the culture here also has the sad effect of victimizing victims of rape.
Norway gives four to fifteen years. Lastly, in the United States, whether the trial is conducted under state or federal law determines the typical penalty for a convicted rapist. According to federal law, the penalties for rapists might include anything from a few years to life in prison.
According to the UN’s annual state of world report, twenty countries still allow rapists to marry their victims in order to avoid criminal persecution. Thailand, Russia and Venezuela are among these countries which will overturn rape convictions if they marry the women or girls they have violated. This is very wrong because the burden of guilt is shifted onto the victim in this attempt to
sanitize a criminal situation.
Sexual violence is a public health crisis because it affects families, friends and neighbors. It is a traumatic crime that impacts survivors physically, mentally, emotionally, spiritually, and behaviorally and it affects people of all ages and demographics. It is a crime that is difficult to prosecute especially because of the existing rape culture environment that normalizes sexual violence through victim blaming, or public scrutiny of the victim’s dress, mental state and history.
This cycle of violence is a barrier to safety and security and, once ingrained in societal fabric, it persists and has the potential to topple institutions that uphold shared values. It is therefore crucial to raise awareness on this issue in hopes that overtime, this will be a thing of the past.
References
Columbia University. (2022). History of Sexual Abuse and Harrassment. Freedom and Citizenship. Retrieved from https://freedomandcitizenship.columbia.edu/gender-equality-history-2021
Kittell-Queller, E. (2014). Raptus in Medieval Law. Retrieved from http://emilykq.weebly.com/blog/raptus-inmedieval-law
Sexual Offences Act 2006, Sec (3-11).
Smith, M. (2004). Encyclopedia of Rape.
Greenwood Press, Westport
Stefick, J. (2020). The Case of Virgin Rape:
Deuteronomy 22. CBE International,
Retrieved from https://www.
cbeinternational.org/resource/article/
priscilla-papers-academic-journal/casevirgin-
rape-deuteronomy-22
The Constitution of Kenya (2010),
Article 260
The author is a lawyer
[email protected]
